The Criminal Law Regulation Of Network Neutral Helping Behavior

Research on the neutral helping behavior starts from the criminal law theory of Germany and Japan.The criminal laws of Germany and Japan take positive measures to restrict the crime.European and American countries take the principle of technology neutrality as a guide in advocating the innocence of technology neutrality.However,China’s judicial practice tends to criminalize the act.In the theoretical circle,the two arguments of affirming conviction and limiting conviction are tit for tat.Since the case of Nora involved punishment for the crime of spreading pornographic works for profit.The discussion of neutral helping behavior is becoming more and more intense.It is difficult to analyze the composition of the elements of a crime based on the accomplice’s subordination in real life.When the act is placed on the backside of the network,offenders can break away from the scope of a country’s sovereignty and commit crimes.Legal and illegal acts,legal information and illegal information are gathered on the network platform,and the defense of "technological innocence" becomes endless.It is even more difficult for platform managers to sort out the behavior and determine the responsibility.The Ninth Amendment of Chinese Criminal Law added the crime of helping information network criminal activities and the crime of refusing to perform the obligation of network security management to provide the basis for the regulation of network crime.But,the discussion on the punishability of network neutral helping behavior has not stopped.By exploring the deep reasons behind it,this thesis aims to sort out a relevant accomplice theory and distinguish the behavior mode,so as to treat it as punishment,which is more conducive to the identification of the responsibility of network service providers.The first part of this paper is an overview of the network neutral helping behavior,which mainly introduces the concept,characteristics.It is also the analysis of the current situation of network neutral helping behavior,combing the legislative evolution and typical judicial cases of the measures,comparing the different regulatory paths of the measures at home and abroad,so as to provide a reference for China’s restrictive punishment.The second part of this paper introduces the specific performance of the expansion of the scope of punishment of network neutral helping behavior.The traditional accomplice theory of our country takes the theory of limitation subordination of an accomplice as the general theory,and denies the establishment of an accomplice without a principal offender.The network neutral helping behavior has broken through this limitation and advanced to helping behavior as the principal offender.The criminalization of neutral helping behavior needs to judge the constitutive elements of a crime,but there is a tendency to cut-off the objective chain of causation and weaken the connection of subjective criminal intent,expand the scope of omission obligation,and abandon the judgment of the appropriateness of the elements of the act of relying on the act of helping.The neutral services provided by a network platform may be used legally or illegally.Some scholars in our country advocate that the proportion of network neutral helping behaviors that are illegally used exceeds the proportion of legal use,and must be punished.The third part of this paper aims to analyze the reasons for the expansion of the scope of punishment,the integration mode of one to many crimes,the ubiquitous risk of cyber-crime,the continuous accumulation of illegal acts,resulting in the structural contradiction between individual and collective legal interests and leading to the expansion of collective legal interests.Therefore,we should restrict the criminalization of network neutral helping behavior from the following aspects:First,by re-examining the theory of accomplices in crimes,and insist that the precondition of accomplices’ subordination can effectively regulate network crime.Second,the criminalization of network neutral helping behavior must be considered comprehensively and we must conduct a comprehensive evaluation of subjective meaning and objective behavior.Third,we should restrict the expansion of collective legal interests caused by the evolution of cyber-crime risks and balance the operation freedom of neutral people and the effective maintenance of the cyber order by balancing interests.The above is the focus of the fourth part of this paper.